Hinds v Lee; Hinds v Kim

• Jurisdiction: Guyana
• Judge: Haynes, C.
• Judgment Date: 12 April 1979
• Neutral Citation: GY 1979 CA 5
• Docket Number: Criminal Appeal No. 73 of 1978
• Court: Court of Appeal (Guyana)
• Date: 12 April 1979

Court of Appeal

Haynes, J.A.

Chancellor, J.A.

Jhappan, J.A.

Massiah, J.A.

Criminal Appeal No. 73 of 1978

Hinds

and

Lee

Hinds

and

Kim

Appearances:

C.H.R. Jackman Deputy Director of Public Prosecutions for the appellant.

C.L. Luckhoo S.C., associated with E. Luckhoo for the respondents.

Criminal Law - Appeal by State against decision of Full Court — Entry by foreign trawlers into statutory fishery zone contrary to Maritime Boundaries, 1977, s.25(2) — Evidence.

Haynes, C.

1 We have before us two applications for leave to appeal to this Court under s. 31(1)(a) of the Court of Appeal Act Cap. 3: 01, on grounds of law, from the judgment of the Full Court on appeals by the respondents against summary convictions for offences in breach of s. 25(2) of the Maritime Boundaries Act 1971. S. 23 of that law established a fishery zone beyond and adjacent to the territorial sea of Guyana for a nautical distance of two hundred miles seawards; s. 25 (1) empowers the Minister responsible for fisheries by order to designate areas of it in which fishing boats registered in specified countries may fish; s. 25 (2) prohibits any foreign fishing boat not registered in any such specified country, from entering the zone except for a purpose recognized by international law or by a convention between the Government of Guyana and that of the country to which the boat belongs; s. 25(2)(6) prohibits fishing while there; and s. 25(4) makes the master of any fishing boat liable on summary conviction for any such unlawful entry.

2 On the relevant dates the respondent Chong Woon Lee was the Master (that is, the captain) of fishing trawler Kwang Myung 309 and the respondent Jung Rin Kim, of fishing trawler Kwang Myung 302. Each was a Korean vessel; it was not registered in a country designated under s. 25 (1); it was not registered locally; so it had no right to fish within the zone. Each Master was charged by summons separately with unlawful entry therein, allegedly between 20 ^th and 23 ^rd September 1977. By consent, the cases were tried together. Each was found guilty and fined $150,000: his boat and gear forfeited and the proceeds of the sale of his catch. Each appealed to the Full Court. Lee's conviction was set aside. Kim's was upheld; but the forfeiture of Kwang Myung 302 was annulled and his fine reduced to $50,000. Under s. 31(1)(a) the right of appeal from the Full Court is “upon any ground which involves a question of law alone,” with leave of the Full Court or of this Court. Hence, these applications by the prosecution.

3 In Hinds v. Jung Kim leave is sought to appeal against the annulment of the order of forfeiture only and on grounds stated as follows:

• “(i) the Full Court had no jurisdiction to set aside the Order of forfeiture of the boat, since there was no appeal by the owner of the boat;

• (ii) the Full Court erred in law in setting aside the Order of forfeiture of the boat on the ground that it was not a sufficient compliance with the proviso to section 27(7)(a) of the Maritime Boundaries Act, 1977 for counsel to address the magistrate at the request of and on behalf of the owner of the boat; and

• (iii) the Full Court erred in law in holding that it was the duty of the magistrate and of the Full Court to take into consideration (in imposing sentence and/or ordering forfeiture of the boat) the contents of a copy (submitted to the magistrate by counsel for both the defendant/respondent and the owners of the boat) of a letter allegedly sent by the Minister and charge d'Affaires of the Republic of South Korea in Suriname, to the Ambassador of Guyana, in Suriname, since the alleged writer of the letter did not give evidence at the trial; and in the use the Full Court made thereof.”

4 Without giving reasons for our view, we are agreed that (i) to (iii) raise grounds of law alone and that as far as jurisdiction is concerned, it could be a proper exercise of our discretion if we should grant leave to appeal on all the grounds of this application.

5 In Hinds v. Chong Woon Lee leave is sought to appeal against the whole order of the Full Court on grounds stated as follows:

• “(i) The Full Court erred in law in holding that the Magistrate could not reject the explanation given by the Defendant/Respondent as to his purpose for entering the zone (vide section 9 — of the Summary Jurisdiction (Procedure) Act, Chap 10:02 on the question of burden of proof of exceptions, exemptions etc. in a statute creating an offence);

• (ii) The Full Court erred in law in holding that the evidence of the defendant's conduct in towing the fishing boat Kwang Myung 302 towards Suriname despite orders from Lieutenant Chuck-a-Sang, a member of the Guyana Defence Force and a Fishery Officer, was not evidence capable of casting doubt on the defendant's allegation of entry for an innocent purpose; and

• (iii) The Full Court erred in law when it rejected the submission that an entry under Section 25 of the Maritime Boundaries Act is committed at every stage that a foreign fishing boat continues to travel within the Fishery Zone of Guyana, so that at every stage of such entry it would be for the master of the vessel to show that his entry was for an innocent purpose.”

6 Counsel for the respondents submitted that (i) and (ii) raised pure questions of fact; and, as regards (iii), that even if it involved a question of law alone, the proposition was plainly wrong and unarguable; and further, on the evidence here, it has no relevance. In support of these submissions Counsel cited Socraj v. Ceres Civil Appeal No. 68 of 1974, 13 ^th March 1975. In that case, this Court examined several authorities on the question of the interpretation of s. 31(1)(a); after advising itself (at page 4) that: “The right of appeal from the Full Court is conferred, and circumscribed by the provisions of s. 31; and it would be wrong for us to give an interpretation to s. 31(1)(a) thereof which would result in the broadening of the scope of appellate jurisdiction under the Act beyond the limitations which are stipulated in the Act itself.” We do not propose to do so again in this judgment. Suffice it to say that we have found in that unanimous judgment of this Court, all the judicial direction we needed for the purpose of dealing with Counsel's contention and the counter-submissions for the applicant that grounds (i), (ii) and (iii) fall rightly within s. 31(1)(a). But in order to adjudicate on the question, it is necessary to refer to the evidence in sufficient detail.

7 It is plain from it that the case the prosecution set out to prove was that both trawlers entered the statutory fishery zone to fish contrary to s. 25(2) of the Act, and, even though this was not essential, that they did in fact do so. As regards Kwang Myung 302 they led the eye-witness testimony of Daniel Christopher the master of The Viking, another fishing trawler, who said that on September 20, 21 and 22, from his vessel nearby he saw ‘302’ fishing there. If believed, this alone without more was sufficient to convict the respondent Jung Rin Kim. Also, there was the evidence that a large (8000 lbs) catch of fish and shrimps of the kind to be found in the waters thereabouts was discovered in the hold on the 23rd when Major Hinds, Commander of the Guyana Defence Force Marine Wing and a party boarded the vessel, after keeping watch on it at anchor there from their patrol craft the “Peccari” from 11.30p.m on 22nd to the morning of the 23rd. The defence did not deny being at anchor in the fishery zone or that there was this catch in the hold. Kim said the catch came from Surinam waters and off Venezuela; that 302 developed engine troubles there; that as a result, on the 20th he started to sail for Paramaribo; that the engine became weaker and weaker and eventually stopped on the 22nd; and he anchored at 5p.m that day, where he was then. So he never fished in the fishery zone at all. If true, this was a complete defence. But a prosecution witness Pte. Andrew Braithwaite, who was in the boarding party, was a mechanical engineer. After a brief conversation with the engineer of 302, he went into the engine room. He checked the engine itself and found it mechanically in order. But its tappet cover was on the floor nearby and in it were the 3 fuel lines. He replaced the lines. He bled them, (which had to be done when lines are replaced), pressed the starter; and the engine started and worked perfectly. So nothing was really wrong with it, said the prosecution. And 302's engineer did not testify for the defence at the hearing. We think, putting aside technical points of law (if any), that the prosecution's proof of guilt as far as 302 was concerned, if believed, was overwhelming.

8 But it was not so as regards 309. The evidence for the prosecution could not and did not prove where 309 was on the 20th, 21st and 22nd while 302 was actually fishing in the fishery zone, as Captain Daniels said it did. It was first seen in the zone from the Peccari while the patrol craft was still keeping watch on 302 from 200 feet off, at around 9a.m on the 23rd; 302 cut anchor, 309 passed a line to 302, and took her in tow going away in a north-easterly direction. Peccari pursued them and when it was about 50 feet from 309 it communicated by flags and loudspeaker. 309 was in a position to hear what was said and to see the signals. 309 was told to change direction and travel to Georgetown. The international code flags “Sierra November” and “Lima” were also flown from the Peccari. These indicated “Stop your vessel instantly.” 309 did not obey. Major Hinds then communicated that he was a fishery officer and 309 was an unregistered boat in the fishery zone of Guyana. Eventually 309 stopped after shots were fired from the Peccari across her bow and the Peccari circled her. A party of four men under Lieutenant Chuck-a-Sang boarded her. Lee was told to steer 230° to...